State v. Saunders

799 P.2d 159, 103 Or. App. 488, 1990 Ore. App. LEXIS 1296

• Court: Court of Appeals of Oregon
• Decided: October 3, 1990
• Docket: 87-262; CA A49948
• Status: Published

Opinions

RICHARDSON, J.

The state appeals an order suppressing evidence discovered during a warrantless search of defendant’s interstate shipment of a box of sturgeon eggs (roe). It argues that the search was either a statutorily authorized administrative search or it was lawful, because there were probable cause and exigent circumstances. We affirm.

The court made findings that neither party disputes, which we summarize. Defendant is a licensed wholesale fish dealer doing business as King Fish Trading Company. In early 1987, Officer Pert, a member of the Oregon State Police Fish and Game Division, discovered, during examination of air freight shipping records, that defendant had made seven shipments of roe during a five-week period in 1986 in amounts ranging from 10 to 45 pounds. Regulations for commercial fishing on the Columbia River prohibit the taking of sturgeon less than four feet and greater than six feet long. OAR 635-04-090(1) (a). Female sturgeon less than six feet long are generally not mature enough to produce roe. Accordingly, the number, frequency and weight of defendant’s shipments led Pert to believe that defendant was shipping roe taken from sturgeon longer than the legal limit.

On December 1,1987, Pert was at the Portland International Airport and saw a package delivered from defendant’s business for shipment. The invoice on the package stated that it contained 44 pounds of raw sturgeon eggs. Pert testified that packages of roe are generally shipped from the airport within an hour after receipt. He immediately opened the box and discovered three, 10-pound bags of roe. He seized the box and its contents and confirmed by laboratory analysis the next day that the roe came from a single sturgeon skein and that the sturgeon’s length exceeded the legal limit.

Defendant was charged with failure to keep adequate records of food fish, ORS 508.535(1), unlawful purchase of sturgeon eggs removed from the body cavity before sale, OAR 635-41-060(2)(f), and unlawful possession of oversized food fish, OAR 635-41-060(1), all class A misdemeanors. ORS 506.991. He moved to suppress the evidence, arguing that Pert’s warrantless search and seizure violated the Oregon and federal constitutions. The court granted the motion, and the state appeals. ORS 138.060(3).

A warrantless search is unlawful, unless it falls within one of the narrow exceptions to the warrant requirement. We first determine whether the search was within the parameters of a statute or the Oregon Constitution. State v. Kennedy, 295 Or 260, 262, 666 P2d 1316 (1983).

The state first contends that a warrant was unnecessary, because the seizure was pursuant to an “administrative search” authorized by ORS 506.550. According to the state, that statute authorized the search and seizure for the same reasons that we upheld a warrantless inspection in State v. Westside Fish Co., 31 Or App 299, 570 P2d 401 (1977). The statute involved there, ORS 506.620, provides:

“The director or authorized agent may enter and inspect all canneries, cold storage houses, packing establishments, business places, boats, fishing gear, and all property used in the taking, processing and packing of food fish, for the purpose of enforcing the commercial fishing laws.”

ORS 506.550, on which the state depends here, provides:

“The officers mentioned in ORS 506.521 may search and examine all places where food fish may be kept, sold or secreted and examine all packages, boxes and bundles held either for storage or shipment which they have reason to believe contain evidence of violation of the commercial fishing laws.”¹

In Westside Fish, the defendant was a licensed food fish canner and wholesale dealer. State fish and game officers entered the defendant’s business premises without a warrant and without probable cause. They discovered unlawfully processed food fish, and the defendant was charged with several offenses. The entry by the officers was made pursuant to ORS 506.620, which we concluded authorized an administrative inspection without a warrant or cause to believe that evidence or fruits of a regulatory violation were on the premises. The issue was whether that statutory authority was constitutional under the Fourth Amendment to the United States Constitution or Article I, section 9, of the state constitution. We concluded that ORS 506.620 authorized administrative inspections and was constitutional for the same reasons that the United States Supreme Court upheld inspections of a pawn shop pursuant to the Federal Gun Control Act of 1968, 18 USC § 921, in United States v. Biswell, 406 US 311, 92 S Ct 1593, 32 L Ed 2d 87 (1972).

Because of our dependence on Biswell and the federal line of reasoning, it is more appropriate to discuss the federal analysis than our description of it in Westside Fish. Biswell was decided in 1972, and by 1987 the Supreme Court had further refined the contours of the Biswell doctrine in New York v. Burger, 482 US 691, 107 S Ct 2636, 96 L Ed 2d 601 (1987). There, the Court said that a warrantless inspection of a pervasively regulated business will be deemed constitutionally reasonable

“only so long as three criteria are met. First, there must be a ‘substantial’ government interest that informs the regulatory scheme pursuant to which the inspection is made. * * *

“Second, the warrantless inspection must be ‘necessary to further [the] regulatory scheme.’ * * *

“Finally, ‘the statute’s inspection program, in terms of the certainty and regularity of its application, [must] provid[e] a constitutionally adequate substitute for a warrant.’ * * * In other words, the regulatory statute must perform the two basic functions of a warrant: it must advise the owner of the commercial premises that the search is being made pursuant to the law and has a properly defined scope, and it must limit the discretion of the inspecting officers.” 482 US at 702-03. (Citations omitted; brackets theirs.)

As we said in Westside Fish, the commercial fish industry is closely regulated, and there is a great public interest in protecting it as an important natural resource. Also, as the Court said in Biswell, a routine “inspection is a crucial part of the regulatory scheme.” 406 US at 315. Two of the criteria for a constitutional inspection are arguably satisfied by the general regulatory scheme in ORS chapter 506. Insofar as those two criteria and the regulatory purposes are implemented by ORS 506.620, the third requirement of Biswell is satisfied.

However, although ORS 506.550 is part of a broad statutory scheme of commercial fish regulation, it does not even marginally implement a routine inspection program. The Court in New York v. Burger, supra, said that the statutory inspection scheme there provided a “constitutionally adequate substitute for a warrant,” because it informed the operator of the business that inspections will be made on a regular basis and the scope of those inspections. Additionally, the Court noted that the program was such that the inspections did not constitute the discretionary act of the government official, but were conducted pursuant to statutory criteria. See also Donovan v. Dewey, 452 US 594, 101 S Ct 2534, 69 L Ed 2d 262 (1981).

ORS 506.550, involved in this case, gives authority to specific officers to “search and examine” specified places and things while ORS 506.620, involved in Westside Fish, gives the Director of the Fish and Game Commission or his designee authority tó “enter and inspect” specific places and things. The state argues that the authority of the two statutes, although phrased differently, is identical. In the abstract, what an officer does under either statute in a particular instance may be the same; but in the context of the Biswell and Westside Fish analysis, inspection has a particular significance. As we interpreted ORS 506.620 in Westside Fish, it provides for routine inspections without the need for cause to believe that a violation will be discovered. Interpreted in that way, the statute provides the proprietor with the requisite knowledge that named places and things related to his commercial fish business will be periodically inspected to insure compliance with the relevant regulations. By contrast, the authority to search in ORS 506.550, when the officer has “reason to believe” that there is evidence of a violation of commercial fishing laws, is the antithesis of the type of regulatory inspection program described in Westside Fish, Biswell, New York v. Burger, supra, and Donovan v. Dewey, supra.

ORS 506.550 authorizes a search of all places where food fish may be kept, sold or secreted. The search is not limited to premises or equipment used in the commercial enterprise of fish taking and processing, as are the inspections allowed by ORS 506.620. The statute at issue in this case, ORS 506.550, is part of a remedial program of enforcement of the criminal provisions of the commercial fishing laws, see ORS 506.506, while the statute at issue in Westside Fish was an implementing force to seek compliance with the commercial fishing regulations. If the purpose of the statutory directive is to search for evidence of a crime, then the constitutional strictures of Article I, section 9, must be satisfied. Nelson v. Lane County, 304 Or 97, 743 P2d 692 (1987). Calling the activity an administrative inspection, or categorizing it as a program necessary for enforcement of laws relating to a pervasively regulated industry, does not sufficiently mask the real character and make the statute constitutional.

We need not, however, declare the statute unconstitutional, because we conclude that, unlike ORS 506.620, it does not authorize a warrantless search. There is nothing in the wording of the statute that says literally, or by implication, that enforcement officers may bypass limitations of the state or federal constitutions in searching for evidénce of criminal activity. The statute is part of a series of sections that spell out the authority of the officers who have been designated to enforce the commercial fishing laws. ORS 506.511 to ORS 506.526. In short, ORS 506.550 does not authorize an “administrative search” or a search that does not comply with Article I, section 9.

We turn then to whether the search here violated Article I, section 9.² The state argues that the search was constitutional, even without a warrant, because Pert had probable cause to believe that the package contained evidence of a crime and that exigent circumstances excused him from seeking a warrant. We agree with the trial court’s conclusion that there was probable cause to justify the search. However, we also agree with the trial court that the state has not established that there were exigent circumstances.

Exigent circumstances that will excuse procuring a warrant have been defined as circumstances giving rise to an emergency situation requiring swift action to prevent destruction of evidence. State v. Girard, 276 Or 511, 555 P2d 445 (1976). It is a rule of practical necessity to search or seize evidence before a warrant can be obtained. State v. Peller, 287 Or 255, 598 P2d 684 (1979); State v. Greene, 285 Or 337, 591 (1979). However, “practical necessity” is not simply a matter of the convenience of the searching officers.

The state argues that immediate action was necessary because Pert did not have sufficient information to obtain a warrant before he saw the package and the invoice at the airport. Because the package was to be shipped within an hour of its arrival and contained perishable material, it was necessary to open it immediately, the state contends. The trial court, in its written decision, said in response to the state’s argument:

“ ‘Exigent circumstances involve an emergency situation requiring swift action to prevent . . . the destruction of evidence.’ [State] v. Roberts, 75 Or App 292[, 295, 706 P2d 564] (1985).

“Once Officer Pert had seized the package, it was incumbent upon the State to show why it could not get a warrant (as was done in [State] v. Kosta, 75 Or App 713[, 708 P2d 365] (1985)), within a reasonable period of time. [State] v. Roberts, supra; [State] v. Robert [sic], 46 Or App 843[, 612 P2d 771] (1980).

“The state failed to carry its burden to prove exigency and the Defendant’s Motion to Suppress is granted.”

The court’s conclusion is not totally clear. It may have determined that there were exigent circumstances to justify seizing the package but not opening it. Its citation to State v. Kosta, 75 Or App 713, 708 P2d 365 (1985), aff’d 304 Or 549, 748 P2d 72 (1987), suggests that. In Kosta, the police seized a package which was being shipped by Federal Express and then obtained a warrant to open it. The trial court also cited State v. Rubert, 46 Or App 843, 612 P2d 771 (1980), and may have concluded that there were no exigent circumstances to justify a warrantless seizure of the package. In any event, either conclusion is subject to review as a matter of law on the facts found by the trial court.

The only facts that bear on the issue of exigent circumstances were that shipments of roe are at the air terminal for only about an hour from receipt to shipment and that air freight employees will not hold the shipments until the officer arrives. The state argues that the time limitations make it impossible, or at least impractical, for an officer to obtain a warrant. We note that Pert seized the package because he believed that he had authority to do so without a warrant under ORS 506.550. That statute is the state’s primary justification for the warrantless seizure. Consequently,.the question of the practical necessity to proceed without a warrant was litigated only as an alternative position, and there was no evidence about how long it would have taken Pert to obtain a warrant, if he had been so inclined. The fact that there are time constraints in obtaining and preserving evidence does not automatically equal exigent circumstances. State v. Roberts, 75 Or App 292, 706 P2d 564 (1985).

A warrantless search is not simply a matter of convenience for the police officer. The state did not show that there was a justification for seizing the package without a warrant. It is unnecessary to determine if a warrant was needed to open the package.

Affirmed.

1 Before its amendment in 1965, ORS 506.550 provided:

“The officers * * * may search and examine all boats, conveyances, vehicles, cold storage rooms, warehouses, taverns, boarding houses, restaurants, outhouses, depots, hotels and other places * *

That list of locations was deleted and replaced by the description “all places.”

2 Because we conclude that the search and seizure violated the state constitution, we need not address federal constitutional issues.